Certainty and flexibility in judicial precedent

How do Stare Decisis and Judicial Precedent affect the development of law? By admin — Posted on November 14, Introduction The aim of this essay is to discuss how Stare Decisis and Judicial Precedent affect the development of law, do they hinder the development or not. Judicial Precedent is the process where the judges follow the cases with similar facts that has been previously decided.

Certainty and flexibility in judicial precedent

The Republic of Ireland differs from many common law jurisdictions in that it has a written constitution which empowers judges to invalidate unconstitutional legislation.

The importance of judicial decision-making in constitutional cases has influenced judicial practice more generally. Irish judges feel a constitutional duty to prioritise doing justice in each case.

They have historically been less formalistic than judges in some common law jurisdictions. They follow precedent in a reasonably flexible way which allows the common law to develop. They have a creative role, although they exercise self-restraint in changing the law due to the separation of powers.

This chapter considers whether the Irish legal system accepts prospective overruling or similar techniques designed to limit the retrospective effect of judicial decision-making.

The question of retrospective effect has arisen most acutely in constitutional cases, where the courts find a statute to be invalid after it has been in force and people have relied on it.

Two landmark cases limit the effects of a ruling of unconstitutionality by different means. Murphy v Attorney General states that an unconstitutional statute is void ab initio and that there should be redress in all but exceptional cases.

A v Governor of Arbour Hill Prison precludes people who have been convicted under an unconstitutional statute and whose cases have reached finality from availing of the invalidity. The relationship between these authorities requires clarification, but they represent a functional equivalent of prospective overruling.

If similar measures can apply when judges develop common law rules, then it appears that Irish law accepts prospective overruling.

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Introduction The Republic of Ireland possesses a common law system, governed by a written constitution. The constitutional framework has strongly influenced the conception of the judicial function in Ireland.

A self-assured judiciary adopts a reasonably flexible approach to precedent in the common law, in order to do justice between the parties in each case.

Prospective overruling has not been expressly adopted in Ireland.

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As in England, some decisions employ techniques which resemble prospective overruling. The problem of the retroactive effect of judicial changes to the law has arisen most obviously in the constitutional context. Irish judges have the power to declare that statutes which have been in force are unconstitutional and invalid.

This function has the potential to create serious problems in unwinding actions taken when the statute was thought to be lawful. Over the past 30 years, the courts have struggled to find a solution which upholds constitutional theory while also avoiding chaos or injustice.

The measures which the judiciary have used to restrict the retrospective effect of a finding of unconstitutionality may be regarded as a form of prospective overruling. If similar measures might apply when judges develop common law rules, then it appears that Ireland does accept prospective overruling.

It would, however, remain vanishingly rare, and only appropriate in cases where a change to the law would have exceptionally prejudicial effects on people who relied on the previous understanding of the law.

The People are sovereign. Between andIreland was an integral part of the United Kingdom legal order. For example, the law of judicial review of administrative acts is largely judge-made. It is widely accepted that judges make law, and that their role is not merely interpretative, but also creative.

The Place of Statutes The courts are keenly aware of the imperative not to encroach on the legislative function. If Parliament has enacted a statute which applies to the case before the court, the court must interpret and apply the statute.

Parliament is understood to be aware of the pre-existing law when it drafts legislation. They cannot fill gaps in the statute and are sometimes powerless to avoid an unjust result. The Supreme Court ruled that the courts had no power to rectify the error.

Only Parliament could correct it, even though it meant that many prosecutions for drunk driving would fail on a technicality until the legislation was amended.

The law should be certain and predictable; it should also be just and move with the times.

Certainty and flexibility in judicial precedent

Citizens should be able to inform themselves of the law. However, it is more appropriate for a trial court to apply the rules of precedent, and, if necessary, its decision can be appealed to a higher court, which will not be constrained by the same case law.

Judges can use their power to interpret past authorities to nudge the law in new directions. They have wide latitude in determining the ratio decidendi of a prior case.Doctrine of Precedent • Four categories (see Telstra v Treloar () FCR , ): – Certainty – Equality – Efficiency – Appearance of justice.

• As each case is only a brick in the wall – development of legal principles is incremental and orderly. The aim of this essay is to examine the quotation made by Lord Woolf CJ with regards to certainty and flexibility within the doctrine of judicial precedent; it is important to consider the principles of judicial precedent that facilitate certainty and flexibility within the law and also the principles that cause weakness.

Certainty and Flexibility in Judicial Precedent Essay. It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious - Certainty and Flexibility in Judicial Precedent Essay introduction.

The problem is that these two concepts of judicial precedent are seen as working against each other and. Certainty and Flexibility in Judicial Precedent It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious - Certainty and Flexibility in .

Certainty and Flexibility in Judicial Precedent Essay Free Short Example | Graduateway

Advantages and disadvantages of judicial precedent Some of the questions in your exams will ask for you to explain the advantages and/or disadvantages of certain areas of law in our legal system.

The first area we are going to cover is the good or bad/the pros or cons/the positives or negatives of judicial precedent. The doctrine of judicial precedent means that judges can refer back to previous decisions to help decide similar cases where the law and facts are alike.

This doctrine is concerned with the influence and value of past decisions of case law and the judge's prior legal experience.

The Prospective and Retrospective Effect of Judicial Decisions in Ireland |